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Getting married? Think about a pre nup?

August 20, 2012

A prenuptial agreement (pre-nup) is an agreement that two people enter into before they marry. In California a prenuptial agreement may define whether or not property is community or separate. This distinction is very important if the couple divorces or one dies without a will.

Under California law, any property that a person owns prior to marriage, that is kept separate, in that person’s name only and not mixed with marital assets, or property that someone inherits after marriage is considered separate property. All other property is community property including property that was separate but mixed (co-mingled) with your spouse.

Probate and intestate laws also affect how property is distributed after one spouse dies. A pre-nup takes precedence over California laws that give inheritance rights to a surviving spouse.

Benefits of Pre-nups

Pre-nups are recognized by couples and courts as common agreements, especially when someone marries for the second or third time. Courts favor pre-nups because it makes it easier for the parties to decide who gets what assets when they decide to divorce, eliminating long drawn out fights.

Having a pre-nup or post-nup doesn’t mean you don’t trust or love your new spouse, it means that both of you are being smart about protecting your assets for yourself and your heirs. Second marriages can be complex, especially when there are children involved from prior marriages. One person may have substantially more assets than the other, or may want to protect a family business or heirlooms.

Attorney Assistance

Since a pre-nup can be complicated, the agreements are generally prepared by a California attorney. They are required to be delivered to each party in advance of the wedding so everyone has a chance to have the document reviewed by their own attorney. This way each party feels their interests are being protected, and the agreement holds up better in court. The couple should also review and make new wills and trusts acknowledging the marriage and writing changes to take into account their new marital status.

If you are getting married, you should consult with a California attorney about preparing a pre-nup to protect your assets. Also, having the attorney prepare a valid California will or trust for you will further ensure that your assets are distributed in the manner you choose, by the person you trust most to do it.

If you have any questions please feel free to contact our office at 858-792-5988 for a consultation.